Dementia & Estate Planning
In our experience, as someone begins to realize that he or she is starting to lose their capacities, they are far less likely to share control of assets and decision making. This clinging to the reins of what they can control often gets tighter as memory fades, making it harder and harder to have them get the planning done at all. It is less threatening to make plans that are largely theoretical.
This is a strong reason to get planning in place or updated before it is needed. If you know someone who is starting to struggle with memory, encourage them to speak with an estate planning lawyer.
Proper estate planning is essential for every adult American, but especially for those in the early stages of Alzheimer’s disease and other forms of dementia. Action must be taken sooner rather than later if you want to participate in the planning process itself.
While you might not think you are at risk for dementia, one in three adults over the age of 65 develops dementia. Even if you do not experience dementia yourself, the odds are that someone close to you will.
Estate Planning for Seniors without Dementia
Knowing the numbers, it would be a wise decision to create your estate plan before there is any question about whether you have sufficient legal capacity. Still, if you are 65 or older, you might want to include a letter from your primary care physician confirming that you are of sound mind at the time you prepare and sign your legal documents.
Things to discuss with your estate planning lawyer include:
- Developing a strategy for long-term care. This includes evaluating your long-term care insurance policy provisions or, if you are uninsured, your Medicaid planning options.
- Designating your key decision-makers. You will need to legally appoint someone now to make your personal, health care, and financial decisions, if you unable to make or communicate them in the future. An advance health care directive with a durable power of attorney for health care decisions and a general durable power of attorney for financial decisions are key legal documents for every adult American.
- Creating or updating your will or living trust. Many of us execute these legal instruments then stick them in a drawer and promptly forget about them. We simply set it and forget it. This is the time to locate your will or living trust, dust them off, and read them. Like many people, you will likely find that your will or living trust is out-of-date. For example, your documents might include a former spouse or contain terms that were appropriate when you had young children but no longer apply.
Estate Planning for Seniors in the Early Stages of Dementia
Even after a diagnosis of dementia, you may still prepare or update your estate plan. However, the estate planning process must carefully assess and memorialize your mental capacity. As noted above, it is always a good idea to have a medical doctor evaluate and certify in writing your ability to understand the content of your estate planning documents and the consequences of signing them.
The medical evaluation and certification of mental capacity should be kept with your important legal papers, including your estate planning documents.
What to Do When a Person with Dementia Lacks Mental Capacity
We do not always have the luxury of knowing that there is a “problem” before there is a problem, especially when someone close to us experiences diminished mental capacity. Unfortunately, at some point, that someone loses the legal capacity to participate in preparing and signing legal documents. In hindsight, loved ones should have recognized the warning signs of dementia. Nevertheless, whether due to denial or the business of daily life, no action was taken to create an appropriate estate plan.
What then?
If you find yourself in this situation with a close loved one, you will need to initiate a probate process to be formally appointed as a guardian/conservator by the court. Once appointed, you will be able to make personal, health care and financial decisions for your incapacitated loved one under the ongoing supervision of the court. You will need the assistance of an attorney to process this legal action.
Final Thoughts
As with most things in life, prevention is always more prudent than the cure. It is the same in the face of an Alzheimer’s or a dementia diagnosis. If you have not taken care of your legal business, then there is no time like the present. While you are at it, share this advice with those near and dear to you.
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